(a) A lawyer shall not by in-person contact or other real-time communication solicit professional employment from a prospective client with whom the lawyer has no family relationship, prior or current professional relationship, or close personal friendship, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. AReal-time communication@ means in-person, telephonic, electronic, radio, wire, wireless or other similar communication directed to a specific recipient and characterized by the immediacy and interactivity of response between individuals, such as that provided through standard telephone connections and Internet Achat rooms.@

(b) A lawyer may not solicit professional employment from a prospective client by any communication directed to a specific recipient concerning a specific cause of action under the following circumstances:

(1) The person has made known to the lawyer a desire not to receive communications from the lawyer; or

(2) The communication involves coercion, duress or harassment.

(c) Every written communication from a lawyer soliciting professional employment from a prospective client and with whom the lawyer has no family relationship, prior or current professional relationship, or close personal friendship, shall prominently include the words AAdvertising Material@ on the outside envelope, if any, and at the beginning of the communication. For the purposes of this subsection, Awritten communication@ does not include advertisement through public media, including but not limited to a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television.

COMMENT

There is a potential for abuse inherent in direct in-person or other real-time communication by a lawyer with a prospective client known to need legal services. These forms of solicitation by a lawyer of a prospective client subject the lay person to the private importuning of a trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to evaluate fully all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer=s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation and overreaching, particularly where the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer. This potential for abuse inherent in direct in-person and other real-time solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising permitted under Rule 7.2 offers alternative means of conveying necessary information to those who may be in need of legal services.

The use of general advertising and written and recorded communications to transmit information from lawyer to prospective client, rather than direct in-person communications, will help to ensure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 are required to be recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false or misleading communications in violation of Rule 7.1. The contents of direct in-person communications between a lawyer and a prospective client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false or misleading.

There is far less likelihood that a lawyer would engage in abusive practices against an individual with whom the lawyer has a family relationship, prior or current professional relationship or close personal friendship, or where the lawyer is motivated by considerations other than the lawyer=s pecuniary gain. Although not easily defined, a close personal friendship should be a mutually acknowledged friendship. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in these situations.

Rule 7.3(a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries. Also, a lawyer may solicit professional employment by written, recorded or other electronic communication to persons not known to need legal services of the kind provided by the lawyer in a particular matter but who are so situated that they might in general find such services useful.

But even permitted forms of solicitation can be abused. Any solicitation that contains information which is false or misleading within the meaning of Rule 7.1, involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited.

The requirement in Rule 7.3 that certain communications be marked AAdvertising Material@ does not apply to communications sent in response to requests of prospective clients or their representatives. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

Although the requirement to place the words AAdvertising Material@ on written communication from a lawyer soliciting employment from a prospective client may not ensure the accuracy and reliability of the contents, it puts the prospective client on notice of the nature of the communication. Lawyer solicitations in public media that regularly contain advertisements do not need the AAdvertising Material@ notice because persons who view or hear such media usually recognize the nature of the communications.